Constitutionality of Illinois eavesdropping law challenged in court

Ryan Haggerty and Jason Meisner, Chicago Tribune reporters

Illinois' strict eavesdropping law, which prohibits people from making audio recordings of police officers working in public, should be declared unconstitutional, an attorney representing a Chicago artist charged under the statute argued in court Tuesday.

The law is meant to prevent people from secretly recording private conversations, but it "is not designed to protect police conduct that is open and in public," attorney Joshua Kutnick told Cook County Judge Stanley Sacks.

Kutnick represents Chris Drew, 61, who was arrested in December 2009 for selling art on State Street in the Loop without a permit. Drew used an audio recorder in his pocket to capture his conversations with police during the arrest and was charged with eavesdropping on a public official, a felony that carries up to 15 years in prison.

Kutnick filed a motion last fall seeking to have Sacks declare the state's eavesdropping law unconstitutional. Kutnick and Assistant State's Attorney Jeffrey Allen argued the motion Tuesday, with Allen saying the law protects police officers from being recorded in public without their consent. Sacks said he would issue a written ruling March 2.

Illinois, one of only a handful of states where the consent of every person involved is needed to make an audio recording of a public conversation, has one of the most restrictive eavesdropping laws in the country.

Kutnick argued that police officers working in public do not have an expectation of privacy and said the current law "criminalizes (Drew's) attempt to basically memorialize what is going on."

But Allen disputed Kutnick's arguments, saying, "It couldn't be more clear that this also protects police officers' privacy rights."

Sacks' decision about the constitutionality of the law will be the latest development in an ongoing debate about whether the statute makes sense today, when so many people carry smartphones capable of recording audio and video.

Last week, a House committee approved legislation introduced by state Rep. Elaine Nekritz, D-Northbrook, that would give people permission to record police who are on duty and working in public. Nekritz said Tuesday that she doesn't plan to call the bill before the full House for several weeks.

In August, a Cook County jury acquitted a woman who had recorded two Chicago police internal affairs investigators she believed were trying to dissuade her from filing a sexual harassment complaint against a patrol officer.

A U.S. appeals court is considering a separate challenge. And a judge in southeastern Illinois' Crawford County ruled last fall that the law is unconstitutional and dismissed eavesdropping charges against a man accused of recording police and court officials without consent.

Chicago police Superintendent Garry McCarthy recently said he supports letting people record the police and vice versa. But backers of the law — including the Cook County state's attorney's office and several police labor groups — have said that allowing people to record police could subject officers to baseless accusations of misconduct and intimidate witnesses at crime scenes.